Labor board will appeal recess appointments case to US Supreme Court

WASHINGTON – The National Labor Relations Board said Tuesday it plans to appeal to the U.S. Supreme Court a far-reaching decision that invalidated President Barack Obama’s recess appointments to the agency.

The board is seeking to overturn a decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which ruled in January that Obama violated the Constitution when he bypassed the Senate to install three members to the labour board.

In a statement, the board says it conferred with the Justice Department in deciding not to seek a rehearing before the full appeals court and take its appeal directly to the Supreme Court.

The board has until April 25 to file the appeal.

Since the appeals court’s decision, companies in more than 90 cases have argued that the board lacks authority to take action against them because three of its members are not legitimate. The five-member board, which resolves complaints of unfair labour practices, is allowed to issue decisions only when it has at least three sitting members.

The decision has placed a cloud over the board’s ability to function at every level. Companies have been challenging whether the board can set union elections or issue subpoenas during routine investigations of labour practices, said Lafe Solomon, the board’s acting general counsel.

“For the people that want to delay proceedings, this gives them the opportunity for delay,” Solomon said.

Obama made the recess appointments to the board in January 2012, after Senate Republicans blocked his choices for an agency they contended was biased in favour of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows the president to make appointments if the Senate is in recess.

But in a first-of-its-kind ruling, the appeals court said a recess occurs only during the breaks between formal yearlong sessions of Congress, not just any informal break. It also ruled that a vacancy must come into being during a recess in order to be valid.

The White House and the board have insisted the appeals court decision is wrongheaded and contrary to more than 150 years of practice. If it stands, the decision would mean that more than 285 recess appointments made by presidents since 1867 were invalid. In practice, it would virtually eliminate the ability of presidents to make any recess appointments.

Recess appointments have become more common for both Democratic and Republican presidents in recent years. During President George W. Bush’s administration, Senate Democrats began the tactic of preventing the Senate from going into recess specifically to prevent Bush from making recess appointments that had been blocked.

Republicans used the same tactic on Obama to block appointments to the NLRB and the newly formed Consumer Financial Protection Bureau. So far, Obama has made 26 recess appointments. President George W. Bush made 141 in eight years.

The U.S. Chamber of Commerce, which helped bring the case challenging Obama’s appointments on behalf of one of its members, said it welcomes the chance for a hearing before the Supreme Court. Chamber President and CEO Thomas Donohue called it “an important step toward resolving the tremendous uncertainty created by the controversial recess appointments.”

The NLRB has insisted that it can continue to function pending appeal of the case. Some Republican lawmakers have called on the recess appointees to leave their posts.

Obama has since nominated for full terms two of the recess appointees whose appointments were disputed by the appeals court.

Patrick Semmens, vice-president of the National Right to Work Foundation, said he hopes the Supreme Court “will take this opportunity to rein in the out-of-control NLRB and restore the balance of power the constitution intended.”


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